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Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 157472

September 28, 2007

SSGT. JOSE M. PACOY, Petitioner,


vs.
HON. AFABLE E. CAJIGAL, PEOPLE OF THE PHILIPPINES and OLYMPIO L.
ESCUETA, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by SSGT. Jose M.
Pacoy1 (petitioner) seeking to annul and set aside the Orders dated October 25, 20022 and
December 18, 20023 issued by Presiding Judge Afable E. Cajigal (respondent judge) of the
Regional Trial Court (RTC), Branch 68, Camiling, Tarlac in Criminal Case No. 02-42.
On July 4, 2002, an Information for Homicide was filed in the RTC against petitioner committed
as follows:
That on or about the 18th day of March 2002, in the Municipality of Mayantoc, Province of
Tarlac, Philippines and within the jurisdiction of this Honorable Court, the said accused with
intent to kill, did then and there wilfully, unlawfully and feloniously shot his commanding officer
2Lt. Frederick Esquita with his armalite rifle hitting and sustaining upon 2Lt. Frederick Esquita
multiple gunshot wounds on his body which caused his instantaneous death.
With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard of his rank.4
On September 12, 2002, upon arraignment, petitioner, duly assisted by counsel de parte, pleaded
not guilty to the charge of Homicide. Respondent Judge set the pre-trial conference and trial on
October 8, 2002.5
However, on the same day and after the arraignment, the respondent judge issued another Order,6
likewise dated September 12, 2002, directing the trial prosecutor to correct and amend the
Information to Murder in view of the aggravating circumstance of disregard of rank alleged in
the Information which public respondent registered as having qualified the crime to Murder.

Acting upon such Order, the prosecutor entered his amendment by crossing out the word
"Homicide" and instead wrote the word "Murder" in the caption and in the opening paragraph of
the Information. The accusatory portion remained exactly the same as that of the original
Information for Homicide, with the correction of the spelling of the victims name from
"Escuita" to "Escueta."7
On October 8, 2002, the date scheduled for pre-trial conference and trial, petitioner was to be rearraigned for the crime of Murder. Counsel for petitioner objected on the ground that the latter
would be placed in double jeopardy, considering that his Homicide case had been terminated
without his express consent, resulting in the dismissal of the case. As petitioner refused to enter
his plea on the amended Information for Murder, the public respondent entered for him a plea of
not guilty.8
On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend Proceedings
Pending the Resolution of the Instant Motion9 on the ground of double jeopardy. Petitioner
alleged that in the Information for Homicide, he was validly indicted and arraigned before a
competent court, and the case was terminated without his express consent; that when the case for
Homicide was terminated without his express consent, the subsequent filing of the Information
for Murder in lieu of Homicide placed him in double jeopardy.
In an Order10 dated October 25, 2002,11 the respondent judge denied the Motion to Quash. He
ruled that a claim of former acquittal or conviction does not constitute double jeopardy and
cannot be sustained unless judgment was rendered acquitting or convicting the defendant in the
former prosecution; that petitioner was never acquitted or convicted of Homicide, since the
Information for Homicide was merely corrected/or amended before trial commenced and did not
terminate the same; that the Information for Homicide was patently insufficient in substance, so
no valid proceedings could be taken thereon; and that with the allegation of aggravating
circumstance of "disregard of rank," the crime of Homicide is qualified to Murder.
Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In his Motion to
Inhibit, he alleged that the respondent judge exercised jurisdiction in an arbitrary, capricious and
partial manner in mandating the amendment of the charge from Homicide to Murder in disregard
of the provisions of the law and existing jurisprudence.
In his Motion for Reconsideration, petitioner reiterated that the case against him was dismissed
or otherwise terminated without his express consent, which constitutes a ground to quash the
information for murder; and that to try him again for the same offense constitutes double
jeopardy. Petitioner stated that contrary to respondent judge's conclusion that disregard of rank
qualifies the killing to Murder, it is a generic aggravating circumstance which only serves to
affect the imposition of the period of the penalty. Petitioner also argued that the amendment
and/or correction ordered by the respondent judge was substantial; and under Section 14, Rule

110 of the Revised Rules of Criminal Procedure, this cannot be done, since petitioner had already
been arraigned and he would be placed in double jeopardy.
In his Order dated December 18, 2002,12 the respondent judge denied the Motion to Inhibit and
granted the Motion for Reconsideration, thus:
WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby DENIED while the
Motion for Reconsideration is hereby GRANTED.
Unless ordered otherwise by the Highest Court, the presiding judge shall continue hearing this
case. Further, the Order dated October 25, 2002 is reconsidered and the original information
charging the crime of homicide stands.13
In granting the Motion for Reconsideration, respondent judge found that a close scrutiny of
Article 248 of the Revised Penal Code shows that "disregard of rank" is merely a generic
mitigating14 circumstance which should not elevate the classification of the crime of homicide to
murder.
On April 30, 2003, petitioner filed herein petition for certiorari on the following grounds:
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND
EXCEEDED HIS JURISDICTION IN ORDERING THE AMENDMENT OF THE
INFORMATION FROM HOMICIDE TO MURDER.
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND
VIOLATED THE LAW IN DENYING THE MOTION TO QUASH THE
INFORMATION FOR MURDER.
THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND
EXCEEDED HIS JURISDICTION AND VIOLATED THE LAW IN ORDERING THE
REINSTATEMENT OF THE INFORMATION FOR HOMICIDE WHICH WAS
ALREADY TERMINATED.15
Petitioner alleges that despite having entered his plea of not guilty to the charge of Homicide, the
public respondent ordered the amendment of the Information from Homicide to Murder because
of the presence of the aggravating circumstance of "disregard of rank," which is in violation of
Section 14, Rule 110 of the Revised Rules of Criminal Procedure; that the public respondents
ruling that "disregard of rank" is a qualifying aggravating circumstance which qualified the
killing of 2Lt. Escueta to murder is erroneous since, under paragraph 3, Article 14 of the Revised
Penal Code, disregard of rank is only a generic aggravating circumstance which serves to affect
the penalty to be imposed upon the accused and does not qualify the offense into a more serious

crime; that even assuming that disregard of rank is a qualifying aggravating circumstance, such
is a substantial amendment which is not allowed after petitioner has entered his plea.
Petitioner next contends that the respondent judge gravely abused his discretion when he denied
the Motion to Quash the Information for Murder, considering that the original Information for
Homicide filed against him was terminated without his express consent; thus, prosecuting him
for the same offense would place him in double jeopardy.
Petitioner further argues that although the respondent judge granted his Motion for
Reconsideration, he did not in fact grant the motion, since petitioner's prayer was for the
respondent judge to grant the Motion to Quash the Information for Murder on the ground of
double jeopardy; that his Motion for Reconsideration did not seek the reinstatement of the
Information for Homicide upon the dismissal of the Information for Murder, as he would again
be placed in double jeopardy; thus, the respondent judge committed grave abuse of discretion in
reinstating the Homicide case.
In his Comment, the Solicitor General argues that the respondent judge's Order reinstating the
Information to Homicide after initially motu proprio ordering its amendment to Murder renders
herein petition moot and academic; that petitioner failed to establish the fourth element of double
jeopardy, i.e., the defendant was acquitted or convicted, or the case against him was dismissed or
otherwise terminated without his consent; that petitioner confuses amendment with substitution
of Information; that the respondent judge's Order dated September 12, 2002 mandated an
amendment of the Information as provided under Section 14, Rule 110 of the Revised Rules of
Criminal Procedure; and that amendments do not entail dismissal or termination of the previous
case.
Private respondent Col. Olimpio Escueta, father of the victim, filed his Comment alleging that no
grave abuse of discretion was committed by the respondent judge when he denied petitioner's
Motion to Quash the Amended Information, as petitioner was not placed in double jeopardy; that
the proceedings under the first Information for homicide has not yet commenced, and the case
was not dismissed or terminated when the Information was amended.
In his Reply, petitioner reiterates his contention that the amendment of the charge of Homicide to
Murder after his arraignment would place him in double jeopardy, considering that said
amendment was without his express consent; and that such amendment was tantamount to a
termination of the charge of Homicide.
The parties filed their respective Memoranda.
Generally, a direct resort to us in a petition for certiorari is highly improper, for it violates the
established policy of strict observance of the judicial hierarchy of courts. However, the judicial

hierarchy of courts is not an iron-clad rule.16 A strict application of the rule of hierarchy of courts
is not necessary when the cases brought before the appellate courts do not involve factual but
legal questions.17
In the present case, petitioner submits pure questions of law involving the proper legal
interpretation of the provisions on amendment and substitution of information under the Rules of
Court. It also involves the issue of double jeopardy, one of the fundamental rights of the citizens
under the Constitution which protects the accused not against the peril of second punishment but
against being tried for the same offense. These important legal questions and in order to prevent
further delay in the trial of the case warrant our relaxation of the policy of strict observance of
the judicial hierarchy of courts.
The Courts Ruling
The petition is not meritorious.
We find no merit in petitioner's contention that the respondent judge committed grave abuse of
discretion in amending the Information after petitioner had already pleaded not guilty to the
charge in the Information for Homicide. The argument of petitioner -Considering the fact that the case for Homicide against him was already terminated without his
express consent, he cannot anymore be charged and arraigned for Murder which involve the
same offense. The petitioner argued that the termination of the information for Homicide without
his express consent is equivalent to his acquittal. Thus, to charge him again, this time for Murder,
is tantamount to placing the petitioner in Double Jeopardy.18
is not plausible. Petitioner confuses the procedure and effects of amendment or substitution
under Section 14, Rule 110 of the Rules of Court, to wit -SEC. 14. Amendment or substitution. A complaint or information may be amended, in form or
in substance, without leave of court, at any time before the accused enters his plea. After the plea
and during the trial, a formal amendment may only be made with leave of court and when it can
be done without causing prejudice to the rights of the accused.
xxx
If it appears at any time before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with Rule 119, Section 11, provided the accused
would not be placed thereby in double jeopardy, and may also require the witnesses to give bail
for their appearance at the trial.

with Section 19, Rule 119 of which provides:


SEC. 19. When mistake has been made in charging the proper offense. - When it becomes
manifest at any time before judgment that a mistake has been made in charging the proper
offense and the accused cannot be convicted of the offense charged or any other offense
necessarily included therein, the accused shall not be discharged if there appears good cause to
detain him. In such case, the court shall commit the accused to answer for the proper offense and
dismiss the original case upon the filing of the proper information.
First, a distinction shall be made between amendment and substitution under Section 14, Rule
110. For this purpose, Teehankee v. Madayag19 is instructive, viz:
The first paragraph provides the rules for amendment of the information or complaint, while the
second paragraph refers to the substitution of the information or complaint.
It may accordingly be posited that both amendment and substitution of the information may be
made before or after the defendant pleads, but they differ in the following respects:
1. Amendment may involve either formal or substantial changes, while substitution
necessarily involves a substantial change from the original charge;
2. Amendment before plea has been entered can be effected without leave of court, but
substitution of information must be with leave of court as the original information has to
be dismissed;
3. Where the amendment is only as to form, there is no need for another preliminary
investigation and the retaking of the plea of the accused; in substitution of information,
another preliminary investigation is entailed and the accused has to plead anew to the
new information; and
4. An amended information refers to the same offense charged in the original information
or to an offense which necessarily includes or is necessarily included in the original
charge, hence substantial amendments to the information after the plea has been taken
cannot be made over the objection of the accused, for if the original information would be
withdrawn, the accused could invoke double jeopardy. On the other hand, substitution
requires or presupposes that the new information involves a different offense which does
not include or is not necessarily included in the original charge, hence the accused cannot
claim double jeopardy.
In determining, therefore, whether there should be an amendment under the first paragraph of
Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the
rule is that where the second information involves the same offense, or an offense which

necessarily includes or is necessarily included in the first information, an amendment of the


information is sufficient; otherwise, where the new information charges an offense which is
distinct and different from that initially charged, a substitution is in order.
There is identity between the two offenses when the evidence to support a conviction for one
offense would be sufficient to warrant a conviction for the other, or when the second offense is
exactly the same as the first, or when the second offense is an attempt to commit or a frustration
of, or when it necessarily includes or is necessarily included in, the offense charged in the first
information. In this connection, an offense may be said to necessarily include another when some
of the essential elements or ingredients of the former, as this is alleged in the information,
constitute the latter. And, vice-versa, an offense may be said to be necessarily included in another
when the essential ingredients of the former constitute or form a part of those constituting the
latter.20
In the present case, the change of the offense charged from Homicide to Murder is merely a
formal amendment and not a substantial amendment or a substitution as defined in Teehankee.
While the amended Information was for Murder, a reading of the Information shows that the
only change made was in the caption of the case; and in the opening paragraph or preamble of
the Information, with the crossing out of word "Homicide" and its replacement by the word
"Murder." There was no change in the recital of facts constituting the offense charged or in the
determination of the jurisdiction of the court. The averments in the amended Information for
Murder are exactly the same as those already alleged in the original Information for Homicide, as
there was not at all any change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta
without any qualifying circumstance. Thus, we find that the amendment made in the caption and
preamble from "Homicide" to "Murder" as purely formal.21
Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the
accused has already pleaded, it is necessary that the amendments do not prejudice the rights of
the accused. The test of whether the rights of an accused are prejudiced by the amendment of a
complaint or information is whether a defense under the complaint or information, as it
originally stood, would no longer be available after the amendment is made; and when any
evidence the accused might have would be inapplicable to the complaint or information.22 Since
the facts alleged in the accusatory portion of the amended Information are identical with those of
the original Information for Homicide, there could not be any effect on the prosecution's theory
of the case; neither would there be any possible prejudice to the rights or defense of petitioner.
While the respondent judge erroneously thought that "disrespect on account of rank" qualified
the crime to murder, as the same was only a generic aggravating circumstance,23 we do not find
that he committed any grave abuse of discretion in ordering the amendment of the Information

after petitioner had already pleaded not guilty to the charge of Homicide, since the amendment
made was only formal and did not adversely affect any substantial right of petitioner.
Next, we determine whether petitioner was placed in double jeopardy by the change of the
charge from Homicide to Murder; and subsequently, from Murder back to Homicide. Petitioner's
claim that the respondent judge committed grave abuse of discretion in denying his Motion to
Quash the Amended Information for Murder on the ground of double jeopardy is not meritorious.
Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of Court, which
provides:
SEC. 3. Grounds. - The accused may move to quash the complaint or information on any of the
following grounds:
xxxx
(i) That the accused has been previously convicted or acquitted of the offense charged, or the
case against him was dismissed or otherwise terminated without his express consent.
Section 7 of the same Rule lays down the requisites in order that the defense of double jeopardy
may prosper, to wit:
SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a valid complaint or information or
other formal charge sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.
Thus, there is double jeopardy when the following requisites are present: (1) a first jeopardy
attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second
jeopardy is for the same offense as in the first.24
As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b) before a
competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the
accused was acquitted or convicted, or the case was dismissed or otherwise terminated without
his express consent.25
It is the conviction or acquittal of the accused or the dismissal or termination of the case that bars
further prosecution for the same offense or any attempt to commit the same or the frustration

thereof; or prosecution for any offense which necessarily includes or is necessarily included in
the offense charged in the former complaint or information.26
Petitioner's insistence that the respondent judge dismissed or terminated his case for homicide
without his express consent, which is tantamount to an acquittal, is misplaced.
Dismissal of the first case contemplated by Section 7 presupposes a definite or unconditional
dismissal which terminates the case.27 And for the dismissal to be a bar under the jeopardy
clause, it must have the effect of acquittal.1wphi1
The respondent judge's Order dated September 12, 2002 was for the trial prosecutor to correct
and amend the Information but not to dismiss the same upon the filing of a new Information
charging the proper offense as contemplated under the last paragraph of Section 14, Rule 110 of
the Rules of Court -- which, for convenience, we quote again -If it appears at anytime before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with section 19, Rule 119, provided the accused shall
not be placed in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial.
and Section 19, Rule 119, which provides:
SEC. 19.- When mistake has been made in charging the proper offense - When it becomes
manifest at any time before judgment that a mistake has been made in charging the proper
offense and the accused cannot be convicted of the offense charged or any other offense
necessarily included therein, the accused shall not be discharged if there appears good cause to
detain him. In such case, the court shall commit the accused to answer for the proper offense and
dismiss the original case upon the filing of the proper information.
Evidently, the last paragraph of Section 14, Rule 110, applies only when the offense charged is
wholly different from the offense proved, i.e., the accused cannot be convicted of a crime with
which he was not charged in the information even if it be proven, in which case, there must be a
dismissal of the charge and a substitution of a new information charging the proper offense.
Section 14 does not apply to a second information, which involves the same offense or an
offense which necessarily includes or is necessarily included in the first information. In this
connection, the offense charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the offense proved when
the essential ingredients of the former constitute or form a part of those constituting the latter.28

Homicide is necessarily included in the crime of murder; thus, the respondent judge merely
ordered the amendment of the Information and not the dismissal of the original Information. To
repeat, it was the same original information that was amended by merely crossing out the word
"Homicide" and writing the word "Murder," instead, which showed that there was no dismissal
of the homicide case.
Anent the last issue, petitioner contends that respondent judge gravely abused his discretion in
ordering that the original Information for Homicide stands after realizing that disregard of rank
does not qualify the killing to Murder. That ruling was again a violation of his right against
double jeopardy, as he will be prosecuted anew for a charge of Homicide, which has already
been terminated earlier.
We are not convinced. Respondent judge did not commit any grave abuse of discretion.
A reading of the Order dated December 18, 2002 showed that the respondent judge granted
petitioner's motion for reconsideration, not on the ground that double jeopardy exists, but on his
realization that "disregard of rank" is a generic aggravating circumstance which does not qualify
the killing of the victim to murder. Thus, he rightly corrected himself by reinstating the original
Information for Homicide. The requisite of double jeopardy that the first jeopardy must have
attached prior to the second is not present, considering that petitioner was neither convicted nor
acquitted; nor was the case against him dismissed or otherwise terminated without his express
consent.29
WHEREFORE, the petition is DISMISSED, there being no grave abuse of discretion committed
by respondent Judge.
SO ORDERED.